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Should Final Hearing continue remotely? Judgment of Lieven J [2020] EWHC 1086 (Fam)

Thu 14th May 2020

This is a Judgment of Lieven J [2020] EWHC 1086 (Fam) sitting in the High Court which was handed down on the 5th May 2020. This Judgment relates to whether the final hearing should continue remotely and takes into account the recent Judgments of Re A, Re B and Re P.

 The case deals with whether to proceed with lay evidence remotely or to adjourn part heard having heard the medical evidence over a period of 5 days via Zoom. The case concerns an application for a care order for a 4 year child. In April 2019, his two month old sister died at home. The post mortem established that his sister had sustained 65 fractures to her body as well as brain injuries. As a result the child was made the subject of an interim care order in April 2019.

The case had been listed for a 3 week fact find commencing on 15th April 2020. The mother’s position was that she did not cause the injuries and had no knowledge of the injuries to the baby. The father argued that the injuries were non-accidental. Therefore causation and by whom were very much contested by parents.

Mother was able to participate and heard all the medical evidence. The father had on the second day of the hearing stated he was suicidal and did not participate in the hearing for the remainder of the medical evidence. The court decided it would consider whether the fact finding hearing could be completed remotely at the end of the medical evidence with submissions to be made on this point on 27th April 2020 with the court reserving judgment until the outcome of other appeal remote hearings were decided.

It is noteworthy, that all Counsel in the course of the first week of evidence had invited the court to finalise matters remotely. By the end of the first week the father’s position changed; stating he was not in a position to participate further in the hearing and he applied to adjourn the hearing.

A psychiatric report was directed and prepared by a consultant psychiatrist “both to consider father’s capacity to litigate and also his mental state in terms of his ability to participate in the hearing”. Father was interviewed via Zoom for 2.5 hours. The conclusion of the report was that he had capacity; was able to participate in a lengthy interview with the Psychiatrist; and was able participate in proceedings (although stressful for him) including giving evidence and being cross examined. Father communicated to the psychiatrist that it would help him if he gave his evidence by video which the psychiatrist endorsed.

The court considered most recent cases on remote hearings Re P (A Child Remote Hearing) 2020 EWFC 32, Re A (Children) (Remote Hearing : Care and Placement Orders) [2020] EWCA Civ 583 and Re B (Children) (Remote Hearing: Care and Placement Orders) 2020 EWCA Civ 584 as well as general guidance.

Lieven J had regard to all factors. Having heard submissions on the issues of demeanour, remote video links of lay witnesses the court did not conclude “as a generality that a remote hearing is less good at getting to the truth than one in a courtroom.” It did not conclude that the witness was more inclined to tell the truth if in person and accepted argument that in fact remote video hearings for some witnesses could also positively enable them to relay their account in better conditions. It concluded that “demeanour in itself was not a good guide to truthfulness.”

Submissions were made relating to PD3AA the procedure dealing with video link evidence for those considered to be vulnerable witnesses. Lieven J concluded that video link did not undermine the fairness of the process in this case.

In deciding to refuse the application to adjourn and in considering whether the hearing should proceed with lay clients the court addressed all the factors set out in para 3 and 9 of Re A (Children) (Remote Hearing : Care and Placement Orders) [2020] EWCA Civ 583:

 Importance and nature of the issues to be determined.

Recognised that the issues to be determined “could not be more important in terms of findings, the impact on the parents and the child”. Acknowledged that as per the views in Re A “that in every case there is an individual decision to be made. The importance and nature is but one factor”.

Need for Urgency – Whilst acknowledging that urgency is a point put forward in many cases, the Child is 4 years old, at a crucial age in his need to be settled in school and any adjournment limits educational and care planning for him. The child had now been in the care system for 12 months and a relisting of any part heard hearing would be months away.

An adjourned fact find and then the listing of a welfare hearings would build in further delay. Mother has asthma and has in lockdown rarely left the home. Mother indicated her lack of preparedness at the present time to go to court given her health conditions. All of these factors impacted on the issue of delay.

Legal representation of all parties – all parties represented by highly competent QC’s

Ability of parents to engage in proceedings – Mother was able to fully engage with proceedings in terms of instructions and using the technology. Mother had access to two screens. Father also had access to a computer and had been able to view the hearing. Lieven J had made clear she would not proceed if parents could only follow by phone.

Submissions only case – Not identified as a submissions case.

There is to be lay evidence of fact – Issues and facts are strongly contested. Court was satisfied that the principles of natural justice were followed with the professional evidence. The court considered whether they could follow questions remotely and how accessible the bundle would be to them. Satisfied that mother able to follow fairly and would keep matter under review. Greater concern regarding father who contested the factual basis of medical evidence. On the basis that references would be limited, it was agreed that all documentary references were read out to him and a schedule of references was prepared.

Length of hearing – Listed for 15 days. A time estimate which was perhaps longer than necessary but had therefore factored in the issue of a remote hearing where the concentration levels required can be demanding and fatiguing.

Determined process could be fair in terms of viewing documents, understanding questions and allowing for breaks. Consideration also given to issue of giving this evidence whilst in lockdown and with limited support resources. Both had some support post hearing.  

Technology – The Platform Zoom “has worked reasonably smoothly” and has the function of breakout rooms for parties to give instructions. “Overall view that technology capable of providing a satisfactory hearing”.

Ability of the court and participants to manage the technology – “Ability of parents to manage the technology whilst giving evidence has yet to be fully tested. The only way to deal with this is to be astute to the potential for difficulties and to be prepared to review the situation as the hearing continues.”

Safe alternatives to allow some parts of evidence to take place in court –None in this case. Mother’s asthma and the advice of the psychiatrist for father to give evidence by video.

Conclusion was that “appropriate to continue case remotely and not to adjourn by reason of either of the remote hearing or of father’s mental state.”

To summarise the technology had worked, the Court was confident that the parents could use the technology and would keep it under review. The remote nature of the hearing was not determined an impediment to the father as he had expressed a wish to give evidence remotely. Lieven J acknowledged this would be a stressful time for father but the psychiatrist report conducted over 2.5 hours provided a sound basis for his ability to participate in the hearing and be cross examined. The father had been able to cooperate and was not noticeably anxious in the course of the 2.5 hour interview.

“Father’s ill health not a good ground to adjourn the hearing”. The fairness of the proceedings will be reviewed and revisited as and when necessary.

This case exemplifies the principle of evaluating on a case by case basis the fairness to all parties in conducting remote hearings. Under current lockdown requirements, hearings will be conducted remotely where fair and appropriate to do so with the guiding principle, as in all hearings, that the issue of fairness has to be kept under continuous review.

JOANNE O’SHEA

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